(concurring in the result).
The policy prohibited Day from interfering with the defense of the suit in the state court, and required him to co-operate, in good faith, in that defense. If Day breached the policy in either respect, there can be no recovery herein.
A reading of the record convinces me that in Day’s dealings with Gardner, he was rendering lip service only to the terms of the policy; that he was in fact guided by Liber-man’s advice, and that his real assistance was on the plaintiff’s side of the lawsuit. I do not believe he turned the control of the defense to Gardner, nor co-operated in good faith in his own defense. I was of the opinion that these affirmative defenses, here interposed to the policy, should go to the jury — first, to resolve the conflict between Day and Gardner’s testimony; and second, to draw the necessary inferences after the conflict was resolved, in accordance with the principles so well stated in Prinsen v. Travelers’ Prot. Ass’n (C. C. A. 10) 65 F.(2d) 841. But being well satisfied that this litigation is a family effort to enrich themselves at the expense of the appellee and the insuring public, I yield to the judgment of my associates and the trial court.
I concur on this ground only, for I am not satisfied that this truck, hauling salt for tho named assured, was not being used commercially because the driver took along some relatives without authority. It was, to say the most, a dual use, the primary use being commercial and covered. I doubt if an owner’s liability insurance is suspended whenever *849a driver picks up a friend. Such, defense, moreover, would be waived if the insurance company, with knowledge of the facts and without reservation, assumed actual control of the litigation and the right to settle. Meyers v. Continental Casualty Co. (C. C. A. 8) 12 F.(2d) 52, 55; New Jersey Fidelity & Plate Glass Ins. Co. v. McGillis (C. C. A. 10) 42 F.(2d) 789, 791; 72 A. L. R. 1419.